By George Ogunjimi

Subliminal evidence suggests that trust is in decline among couples and the majority of men in regards to paternity because of wayward lifestyles that are in vogue.

This has resulted in the increasing number of DNA being carried out by men either in conjunction with their partners or secretly by themselves without notification to their partners.

Basically, as at today, the position of the law on the determination of PATERNITY in Nigeria is the judgement by the COURT OF APPEAL, of Mbaba, JCA in the case of TONY ANOZIA V. MRS. PATRICIA OKWUNWA NNANI & IGNATIUS “NNANI” (2015) 8 NWLR (PT. 1461) 241.

FACTS OF THE CASE

The facts of the case which is otherwise known as ANOZIA V. NNANI are that the Appellant filed a suit against a married woman (the 1st Respondent) and her son (the 2nd Respondent) seeking for a declaration of the paternity of the 2nd Respondent.

His case was that he had sexual intercourse with the 1st Respondent sometime in 1957, at a time when the 1st Respondent’s husband was terminally ill and incapable of performing sexual acts.

The Respondents denied the claims.

While the matter was yet to be tried, the Appellant filed an application seeking for an order of court referring parties for a DNA test.

The trial court refused the application on the ground that granting same would amount to allowing the Appellant to use the interlocutory application to realise the relief he sought in the main suit.

The Appellant’s appeal was unanimously dismissed by the Court of Appeal.

In the said case which went to the SUPREME COURT in Appeal No. SC201/2015, the Court of Appeal made judicial pronouncements on some issues, FIVE (5) pf which are most relevant to this discourse.

PRONOUNCEMENT 1
ON THE MEANING OF DNA:

“DNA, that is, “deoxyribonucleic acid” is a molecule that contains the genetic code of any organism. It is hereditary and has become an euphemism for scientific analysis of genetic constitution to determine one’s roots.” (Page 256, Paragraph H)

PRONOUNCEMENT 2
ON WHEN THE COURT CAN ORDER DNA TEST:

“Where a person is a minor (not mature adult) and his paternity is in issue, the court can order the conduct of DNA test in the overall interest of the child, to ascertain where he belongs.

“However, this is not the situation in the instant case where the appellant had a duty to establish his claim on the 2nd respondent, independently, and to produce such evidence to the court. Of course, if he elected to use DNA test to establish his claim, it was up to the appellant to go for it on his own, and/or woo the respondents to do so, without a resort to the coercive powers of the court, to compel his adversary to supply him with the possible evidence he needed to prove his case.” (Page 257, Paragraphs B-C)

“Per MBABA, JCA at Pages 256-257, Paragraphs H-A:
I doubt whether that form of proof can be ordered or is necessary to determine the paternity of a 57 years old man, who does not complain about his parenthood, just to please or indulge a self acclaimed predator, who emerges to distabilize family bonds and poses as a biological father!

“I think it is only the 2nd respondent (a mature adult) that can waive his rights and/or seek to compel his parents (or those laying claim to him) to submit to DNA test to prove his root.”

PRONOUNCEMENT 3
ON WHETHER AN ADULT CAN BE COMPELLED TO SUBMIT TO DNA TEST:

“A court cannot order an unwilling adult or senior citizen to submit to DNA test, in defiance of his fundamental rights to privacy for the purpose of extracting scientific evidence to assist the appellant in the instant case to confirm or disprove his wish that the 2nd respondent – a 57 year old man – is his child, of an illicit amorous relationship!

“I think appellant’s claim at the court below, founded on an obscene and reprehensible immoral foundation, was a scandal and blackmail, which a sound lawyer would be ashamed to associate with.” (Page 254, Paragraphs F-H)

PRONOUNCEMENT 4
ON THE DETERMINATION OF THE PATERNITY OF A CHILD:

“If a party is claiming paternity, a court of law should be allowed to determine same on proof of evidence relating to paternity, which could only be done by referral for a DNA test of the parties involved. After such test, the court has a duty to declare the actual father of the child in dispute in consonance with evidence at its disposal.” [OLAYINKA V. ADEPARUSI (2011) LPELR 2697 referred to.] (Page 256, Paragrahs F-G).

PRONOUNCEMENT 5
ON PRESUMPTION IN RESPECT OF A CHILD BORN WITHIN WEDLOCK:

“A woman has the right to say who the father of her child is, and of course, where a child is born within wedlock, the PRESUMPTION is conclusive that the child is the seed or product of the marriage.” (Page 256, Paragraphs C-D)

PRESUMPTIONS

A PRESUMPTION is an assumption that is made in law that will stand as a fact unless someone comes forward to contest it and REBUTS (disproves) it with clear and convincing evidence.

A REBUTTABLE presumption is an assumption of fact accepted by the court until rebutted (disproved).

Generally, all presumptions can be regarded as REBUTTABLE, and the PRESUMPTION OF PATERNITY is no exception.

The presumption of paternity is rebuttable on the presentation of clear and irrefutable evidence to the contrary, as clearly stated by the Court of Appeal in the PRONOUNCEMENT 2.

CONCLUSION

In a nutshell, the CURRENT position of Nigerian Law is that when a MARRIED woman gives birth to a CHILD, her HUSBAND is 100% PRESUMED to be the father of the child.

And where the PATERNITY of the said CHILD is in contention, upon the application of one of the parties, the court CAN and SHOULD order a DNA test to be conducted to determine the TRUE father of the CHILD.

Conversely, an ADULT is 100% PRESUMED to know his or her TRUE father, unless, they are in doubt themselves.

And where the PATERNITY of the said ADULT is in contention, except the ADULT surrenders himself for a DNA test, upon the application of one of the parties, the court CANNOT and SHOULD NOT order a DNA test to be conducted to determine the father of the ADULT.

• Dr. George Ogunjimi can be reached at jurisrepubliclegal@gmail.com

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